Aug. 26, 2010 — Duke Law scholars argue that all-white and predominantly white juries undermine North Carolina’s death penalty system in two amicus briefs filed Aug. 25 in litigation brought by death-row inmates. More than 115 inmates are challenging their death sentences under North Carolina’s Racial Justice Act, alleging that racial bias influenced the outcome of their cases. The briefs were filed in the Supreme Court of North Carolina and two state superior courts.

Jury expert Neil Vidmar, the Russell M. Robinson II Professor of Law and Professor of Psychology, is the principal author of a brief joined by a dozen social scientists who also specialize in jury behavior. James Coleman, the John S. Bradway Professor of the Practice of Law and Clinical Professor Theresa Newman, who co-direct the Center for Criminal Justice and Professional Responsibility, co-authored a brief filed on behalf of the North Carolina State Conference of the NAACP. Second-year law students Julie Soic and Sarah Dettenwanger contributed to the NAACP brief, on which North Carolina Central University law professor Irving Joyner is co-counsel.

Both briefs address evidence that “death-qualified” African Americans — those who are neither categorically opposed nor predisposed to the imposition of capital punishment — are routinely excluded from juries in capital trials in North Carolina.

“When, on the basis of race, prosecutors use discretionary peremptory challenges to intentionally limit the ‘qualities of human nature and varieties of human experiences’ informing the jury’s deliberations by excluding qualified jurors likely to be ‘representative of the criminal defendants’ community,’ they grossly undermine the role of the jury in capital sentencing,” states the NAACP brief. “The Racial Justice Act requires … that courts call these tactics by their real name, ‘discrimination.’”

The jury experts’ brief sets forth three key reasons, backed by social science research, that the “pervasive presence of all-white and predominantly white capital juries in North Carolina” delegitimizes the state’s death penalty system:

They “negatively affect a jury’s deliberative thoroughness and ultimately the accuracy and fairness of the jury’s verdict bearing on life or death”;

They raise “the very realistic specter that both explicit and subconscious racism could have been present in those trials”; and

They affect “the perceived legitimacy of the North Carolina criminal justice system, especially in the eyes of the large African American community in North Carolina, but also in the eyes of white residents and other minority groups.”

“I felt it was very important to explain exactly why the racial exclusion of African Americans harms our jury system,” said Vidmar, the author, with Valerie P. Hans, of American Juries: The Verdict (Prometheus Books, 2007), among other works. “The jury is a cornerstone of our democracy. It serves as an institution that provides critical community input into the criminal justice system. When qualified citizens are excluded from serving because of their race, the jury does not function as it is supposed to. Our brief spells out how the jury system is harmed.”